On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Before Judges King, D'Annunzio and Eichen
The opinion of the court was delivered by
Atlantic County Indictment No. 93-09-2265 charged defendant with the murder of Roy Dick, a 75 year old black man, in violation of N.J.S.A. 2C:11-3a(1) and (2), and with possession of a weapon, a walking cane, with a purpose to use it unlawfully against the person or property of another, in violation of N.J.S.A. 2C:39-4d. A superseding indictment, No. 94-03-0669, added as a third count the charge that defendant assaulted Roy Dick and in doing so he was motivated "at least in part, with ill will, hatred or bias toward and with a purpose to intimidate Roy Dick because of race," in violation of N.J.S.A. 2C:12-1e.
We granted leave to the State to appeal from a pre-trial order severing count three of the superseding indictment and excluding from "the State's case in chief" drawings and writings allegedly prepared by defendant, expressing defendant's hatred of blacks and his dedication to "white supremacy."
The record indicates that the State has evidence tending to prove the following facts. The victim, Roy Dick, died on July 19, 1993, while a patient at the Atlantic City Medical Center, from injuries he sustained on July 13, 1993. On the latter date, persons living on South Chelsea Avenue in Atlantic City heard loud noises and observed a blond male jump into a gray, 1980's vintage automobile, either a Chevrolet or a K-car. The car was operated by a blond female and exited the Chelsea Pub parking lot. Apparently, the witnesses also observed Dick's body because the police and an ambulance responded to the scene. Dick, who used two canes to assist him in walking, had multiple injuries caused by blunt force trauma and was unconscious when he was removed from the scene. Dick's wallet was in his pocket and contained approximately $127 cash.
On July 16, 1993, as a result of information provided to law enforcement authorities, the police questioned defendant and one Tabitha Buntele. They were apprehended in a gray 1987 Plymouth Reliant K-car owned by Buntele's mother.
Buntele told the police that she saw Crumb push a black male while Crumb was going through the bushes behind the Chelsea Pub parking lot. Buntele stated that thereafter she was unable to see defendant or the victim. According to Buntele, when Crumb returned to her car, he said that he had hit the man, and later he admitted to having kicked the man.
Crumb told the police he had been drinking that night and was urinating in the bushes in back of the Chelsea Pub parking lot when an old man with dark skin approached and swung a cane at him. Crumb was not struck, but he stated that he grabbed the cane and hit the man in the face with his fist. Defendant told the police that he possibly hit the man in the face a second time. According to defendant, the man fell down but did not get up. Crumb then left the scene with Buntele. Police charged Crumb with aggravated assault, and he was incarcerated.
The charge was amended to murder when Roy Dick died. Upon being informed of the new charges, defendant allegedly admitted that he had perhaps struck the victim more than twice. He advised the police that Tabitha Buntele had not been involved in the assault.
The State also contends that a witness, William Dayton, informed the police that he had heard defendant state he had beaten up "an old black bum." According to Dayton, Crumb said that he had walked past the victim and struck him in the back of the head, and that once the victim was on the ground, he had kicked and stomped on his face and chest. Crumb told Dayton that he did it "just because he was there" and that Tabitha Buntele was urging him on.
The State also alleges that Crumb told a fellow inmate, Arthur Thomas, a black man, that he is a ...